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Battle for Interpretational Jurisdiction

﻿The controversial referendum on the constitution is not only decisive for the political positioning of the Egyptian state. It also concerns the future status of the Sharia code within the nation's legal system. Analysis by Niklas Hünseler

﻿In the 1970s, Egypt's President Anwar al-Sadat conducted a policy of rapprochement with Islamist movements in a bid to weaken the leftwing Nasserist movements that did not accept his claim to power.

Egypt's Islamist character as a whole was also accentuated. For example, Article 2 of the Egyptian constitution of 1971 declares that "the principles of Sharia (…) are one major source of legislation". The Article was amended in 1980. Henceforth, the "principles of Sharia" were no longer just one, but the major source of legislation.

Corrective revolution and upgrading of the Islamists: In a bid to dispose of the Nasserist clique in the monolithic power apparatus and the "bothersome lefties", Sadat supported the establishment of an Islamist movement. The principles of Sharia were elevated to one of the main sources of legislation

​​The expression "principles of Sharia" is included neither in the Koran nor the Sunnah. The Egyptian Supreme Constitutional Court ultimately injected meaning into the phrase. "Principles of Sharia", according to the constitutional court under Mubarak, are to be understood as the completely unambiguous and reliably established precepts of Islamic law, which have been accepted by the vast majority of Islamic lawyers over a long period of time.

But the precepts that fall into this category are merely a fraction of all those that appear in the Koran and Sunnah, and are mostly kept very general. In parallel to this, the constitutional court interpreted "principles" as (ethical) goals of Sharia limited to general and abstract norms such as the protection of assets, life, religion, the safeguarding of justice etc. On this basis it was possible to harmonise the "principles of Sharia" with international conventions on human rights.

No planned renunciation of Sharia as main source

The toppling of Mubarak in February 2011 has paved the way for a new constitution. The Egyptian parliament, now dominated by the Muslim Brotherhood and the Salafist "Hizb al-Nour" ("Party of Light") which together make up 65 percent of the vote, has delegated this task to a constituent assembly also mostly made of up Islamists.

While the Tunisian-Islamist "En-Nahda" party, under pressure from liberal forces, refrained from referring to Sharia as a source of legislation in Tunisia's new constitution, in Egypt the picture is somewhat different.

Because Egyptian society is altogether more conservative, no political force can afford to call for a renunciation of Sharia as the main source of legislation. Well-known liberal opposition figures such as Nobel peace laureate Mohammed ElBaradei, Hamdeen Sabahi and also the former foreign minister under Mubarak and Chairman of the Arab League Amr Moussa have all spoken out in favour of leaving Article 2 in its 1980 form.

Even the Patriarch of the Coptic Church Shenouda III. of Alexandria, who died earlier this year, argued in favour of retaining Sharia as the main source of legislation and sacked the Church's spokesman Anba Morcos after he publicly called for the deletion of Article 2.

Unexpected backing for supporters of Sharia: Pope Shenouda III., who died last March, argued in favour of the Sharia code as the primary source of legislation

​​What Egyptian faith communities did however insist upon, was that the constitution should be extended with an Article enshrining the right of Christians and Jews to manage personal and religious affairs according to their own religious laws. The constituent assembly complied with this wish with Article 3.

Which interpretation, which understanding?

In Egypt this is not about the question "Sharia yes or no?". It is much more a case of the various movements on the political spectrum arguing over how much Sharia and what interpretation of the legal system should apply in the new constitution.

The Salafist "Hizb al-Nour" protested vehemently against Article 2 of the constitution and has even threatened to brand it un-Islamic if the "principles" formulation is not dropped.

The party rejects the interpretation of the Supreme Constitutional Court, which had limited the "principles of Sharia" to the "(ethical) goals and the very few, unambiguous and reliably established precepts of Islam, because, it says, this interpretation incorrectly excludes all the precepts of the Koran and Sunnah that do not fall into this category as the basis for legislation. As a result, the party says, the constitutional court decision means that the majority of Sharia laws are not implemented, neither in economic and political sectors nor in penal law.

Calls from "Hizb al-Nour" to cut the reference to "principles" and make the entire Sharia code the basis for legislation led to a hefty exchange of blows between the party and the Al Azhar University, regarded as an authority in the Sunni-Arab world.

The university, which had spoken out in favour of the formulation "principles of Sharia", accused "Hizb al-Nour" of demonstrating a poor understanding of Sharia. Younis Makhyoun, one of the hardliners within "Hizb al-Nour", hit back at Al Azhar accusing the university of not being seriously interested in the implementation of Sharia.

Pressure from radical Islamists

Leading members of the radical Islamist "Gama'a al-Islamiyya", which has officially renounced armed conflict and is, following the ousting of Mubarak, represented in parliament with the "Construction and Development Party", are even calling for Sharia to be made the sole legislative source thereby excluding all other non-Islamic influence. The group's leader Mohammed Salah has even threatened "to fight for the application of Sharia, even if this requires bloodshed".

However, the Muslim Brotherhood and the "Freedom and Justice Party" it founded have always expressed their approval of the formulation of Article 2 since the debate began. The general tenor of their view is that the current situation is not conducive to any amendment of the Article in question. Although Sheikh Abd al-Khaliq Sharif, a senior member of the Muslim Brotherhood, has said that he would understand the "principles of Sharia" to include (all) precepts of the Sharia code.

In addition to this Mohammad Gab-Allah, who is President Mursi's top legal adviser, called for the "principles of Sharia" to be more precisely defined and specified in the constitution, so that these would also include the broad treatises of the Sunni schools of law ("Fiqh").

Uncompromising Salafists: Islamist hardliners within the "Al Nour" party insist that Article 2 of the 1971 constitution should be amended to make the entire Sharia code the main source of legislation, and not just the principles of Sharia as has been the case to date

​​The same demand had previously been issued by "Hizb al-Nour", which said it would be ready to accept the "principles of Sharia" formulation as long as those "principles" are also defined as the treatises of the four Sunni schools of law in the constitution. This reference to the law school treatises had been rejected by moderate legal scholars such as Abd al-Ma'ti Biyoumi and certain personnel at Al Azhar University. Biyoumi warned that such a plan would result in intellectual torpor, as well as impose unnecessary limitations on legislation.

The constitution draft, the fate of which is currently being decided in a referendum, contains under pressure from fundamental groups, alongside Article 2 a new Article that defines the "principles of Sharia" more closely. Article 219 states that the word "principles" also applies to, as well as fundamental norms, the foundations of Islamic jurisprudence as well as the generally recognised legal sources of Sunni orthodoxy.

Blurred boundaries

However, this definition of the "principles of Sharia" no longer corresponds to that of the constitutional court. The new interpretation blurs the boundary between the adoption of an integral Islamic core element as set down by the constitutional court, and the adoption of Sharia as set out by "Hizb al-Nour".

As long as the "foundations of Islamic jurisprudence" and the "legal sources" as set down by the Muslim Brotherhood and "Hizb al-Nour" are also to be understood as the (detailed) interpretations of the schools of law, which were essentially finalised around the 11th to 12th century of the Christian era, the new constitution lays the foundation stone for a considerably more formalistic and traditional administration of justice. And it remains questionable whether this is still reconcilable with international conventions on human rights.

The new constitution cites Al Azhar University as the primary reference source in all questions concerning the Sharia code. This measure depreciates the role of the constitutional court. It is however problematic that senior figures at Al Azhar do not enjoy democratic legitimisation.

This predetermined understanding of Sharia, as agreed by the Islamist majority in the constituent assembly and its overall approach to the matter has been met with stiff resistance from the liberal opposition. Amr Moussa, the Wafd Party, the press and farmers' unions as well as representatives of the Orthodox, Anglican and Catholic churches – which amounts to almost all moderate forces, have withdrawn from the constituent assembly.

The Coptic Patriarch described Article 219 as a "catastrophe" and warned that this heralds Egypt's renunciation of a civilian, modern state. Other sections of the opposition fear Egypt will be transformed into an Islamist state à la Saudi Arabia.

Niklas Hünseler is a political scientist and scholar of Islam. He is currently on a doctorate programme at the University of Cologne and the "International Graduate School of Oriental and Asian Studies (BIGS-OAS)" at the University of Bonn studying Islamic-based democracy using the example of Islamic parties in Egypt in the context of specific concepts of Sharia.

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